Spotlight

Even in the new Criminal Code Bill, while the definition of rape has widened and the punishment for marital rape has increased, there is still this difference between rape and marital rape. The reason for the difference is unclear and has no justification, writes Harsh Mahaseth for South Asia Monitor

The Parliament of Nepal recently adopted a landmark Criminal Code Bill which increases the punishment for marital rape. The Supreme Court of Nepal had earlier already declared marital rape as an offence punishable by law. Nepal is among the notable countries that have identified marital rape as a crime. The Criminal Code of at least 52 nations worldwide criminalizes marital rape.

Under Nepali criminal law, Sub-Section (4) of Section 219 states, “If a man rapes his wife when he is still in marital relationship with her, he shall be sentenced to up to five years in jail.”

Marital rape is a consequence of poverty, illiteracy, backwardness and the presence of a male-dominated culture in the country. Nepal’s government amended the law against rape to include “marital rape” in 2008; however due to lack of awareness and the stigma attached to it, only a few cases have been reported so far. Of the few cases that are reported, the couples are generally sent back home from the police station after counselling, and only very few cases go to court. With the issue not openly discussed, reliable statistics are also unavailable.

Although marital rape has been seen as a criminal offence in the Criminal Code, its severity had not been recognized till now. In the case of Forum for Women, Law and Development v His Majesty’s Government/Nepal, the Nepalese Supreme Court had found the failure to criminalize marital rape in the ‘Muluki Ain’, the General Code of Nepal, as unconstitutional and against the principles of the ICCPR. After this judgement the Muluki Ain was amended in 2006, criminalizing marital rape under Section 3 of the Chapter on Rape. A husband was subject to 3 to 6 months of imprisonment if found guilty of raping his wife.

While the new Criminal Code Bill could be seen as an improvement, it still maintains differential punishment from non-marital rape. The decisions of the Supreme Court, provisions in the Nepalese Constitution and Nepal’s obligations under International Law require that marital rape be treated on par with other forms of rape. Furthermore, differentiating between rape and marital rape violates the right to equality and perpetuates discrimination on the basis of marital status.

Article 2(a) of the Declaration on the Elimination of Violence against Women describes marital rape as a specific form of violence against women.

In a subsequent case before the Supreme Court of Nepal, it was held that discrimination in punishment between marital and non-marital rape cannot be made and is unjustifiable to provide a lesser punishment on the basis of relationship. The Court had ordered the Ministry of Law, Justice and Parliamentary Affairs to make provisions to bring coordination between the discriminatory sentencing policies between marital and non-marital rape.

Even in the new Criminal Code Bill, while the definition of rape has widened and the punishment for marital rape has increased, there is still this difference between rape and marital rape. The reason for the difference is unclear and has no justification.

Marital rape affects the victim physically and psychologically as it also breaks the trust and intimacy present in a marriage relationship. While it is important to create mechanisms and shelters where women can reside when they cannot decide what to do and where else to go, it is also important for women to be aware of their sexual rights. Often such occurrences go unreported. This is due to societal pressure and the conceptof a married couple having one identity, thus risking their “prestige” getting tarnished.

There are a few organisations that deal with cases of marital rape and provide women shelter. The government can coordinate with such organisations, provide support, awareness, capacity building and work towards the elimination of violence against women. Apart from judicial reforms, awareness is required. As the UN has reiterated, people should be educated to respect women’s human rights.

(The author is a student at NALSAR University of Law, India. He can be contacted at harshmahaseth95@gmail.com)

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